Blog Scan

Will "Hardened Criminals" Really Respond to Lighter Sanctions?: Sentencing Law and Policy blogger Doug Berman posts today on Robert H. Frank's New York Times piece "A Smarter (and Cost-Efficient) Way to Fight Crime." The piece, published last Saturday, argues that law enforcement policy in the United States is flawed because it assumes "that crime will be deterred if the expected punishment is strong enough." According to Frank, UCLA professor Mark Kleiman has argued that instead of making punishments more severe, the authorities should
increase the odds that lawbreakers will be apprehended and punished
quickly. Kleinman makes his point in his new book, "When Brute Force Fails," where he argues that most criminals are not the dispassionate rational actors, and are more like impulsive children. This means that they are less likely to consider the cost of punishment and more likely to react to swift punishment. Berman, Frank and Kleinman all appear to view the idea as revolutionary - particularly in light of state budget woes. Another, not so revolutionary, idea? Swift and harsh punishment that discourages all criminals regardless of whether they act rationally or impulsively.

Federal Law Criminalizing Animal Cruelty: At SCOTUSblog, Lyle Denniston reports on Supreme Court oral arguments in U.S. v. Stevens, a case that tests the constitutionality of a federal law criminalizing commercial making and selling of "any
visual or auditory depiction" of killing or seriously abusing a living
animal, if the conduct is illegal under either federal or a state's
law. Denniston reports that despite the Obama Administration's best attempts to demonstrate that the law was carefully and narrowly crafted, most of the Justices implied that the law probably goes too far. Only Justice Alito appeared to support the law as it is. Several Justices appeared to believe that the law was too vague to clarify what was constitutional. At one point during oral arguments Justice Breyer pointed out that because the law was unclear it could apply to the the stuffing geese for pate de fois gras and quail hunting. This went far beyond what Deputy U.S. Solicitor General Neal K. Katyal argued to be the intent of the law - shutting down the robust market "crush videos," images of small animals being stomped to death. Denniston does not believe that the federal law will survive, but predicts a decision in the next "several weeks." Tony Mauro also predicts that the Supreme Court will strike down the law in his post on The Blog of Legal Times.